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Trespass to Property: The Wrongful Interference with Land Including Things Affixed Thereto
Question: What are the legal protections against property interference in Ontario?
Answer: Trespassing is both a civil tort and a criminal offence under the Trespass to Property Act, R.S.O. 1990, c. T.21, which provides individuals with protection against unauthorized entries or interferences with their property. In situations of trespass, whether intentional or accidental, individuals may seek legal recourse to address the intrusion and potentially recover damages. Sharda Sankar Bickramsingh, Licensed Paralegal & Notary Public, is available to assist you in navigating these legal complexities.
Protections Against Property Interference
Trespassing upon property is commonly understood as a unlawful act in respect of the criminal law, such as in the context of a break & enter; however, trespass to property is a civil law tort in addition to a prosecutable offence. As a prosecutable offence, trespass to property is addressed by the Trespass to Property Act, R.S.O. 1990, c. T.21 and the cases arising therefrom and perhaps the Criminal Code of Canada, R.S.C. 1985, c. C-46 depending on the relevant nature of the trespass. As a tort, trespass to property is very broad and involves presence upon and interference with the land of another as well, technically, could arise at any time an uninvited person enters upon the lands of another, or when invited, oversteps or uses the lands of another in an unauthorized way.
The Law
What constitutes as tortious trespass was well explained within the case of Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154 wherein it is stated:
[52] With respect to the claim of trespass to land Lederman J. in Hudson’s Bay at para. 9 states as follows:
Clerk and Lindsell define trespass to land, at p. 837, as consisting of “any unjustified intrusion by one person upon land in the possession of another”. Halsbury’s, Vol. 45, para. 1384 states that “every unlawful entry by one person on the land in possession of another is trespassed for which an action lies…
[53] The elements for the claim of trespass to land are set out by Crane J in Grace v. Fort Erie (Town), 2003 CanLII 48456 (ON SC), [2003] O.J. No. 3475 (SCJ) at para. 86:
The elements of trespass have been described as follows:
- Any direct and physical intrusion onto land that is in the possession of the plaintiff, (indirect or consequential interference does not constitute trespass).
- The defendant’s act need not be intentional, but it must be voluntary.
- Trespass is actionable without proof of damage.
- While some form of physical entry onto or contact with the plaintiff’s land is essential to constitute a trespass, the act may involve placing or propelling an object, or discharging some substance onto the plaintiff’s land can constitute trespass.
Trespass to property, also known as trespass to land, can arise in deliberate ways or by accident. In Gross v. Wright, [1923] S.C.R. 214, the trespass was intentional, involving an attempt to claim a neighbour’s space. By contrast, trespass may also occur innocently, such as when a boundary is crossed unintentionally, as illustrated in Barnstead v. Ramsey, 1996 CanLII 1574, and Sinkewicz v. Schmidt, 1994 CanLII 5148, where a neighbour’s trees were mistakenly removed.
Damages for Trespass
The amount of damage from trespass can be hard to measure. When a trespass happens without causing real harm, deciding on fair compensation can be problematic, and courts usually grant only a nominal award. The Court of Appeal reviewed this issue thoroughly in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, highlighting the challenge of proving damages precisely and stating:
[61] It is also beyond controversy that a plaintiff bears the onus of proving his or her claimed loss and the quantum of associated damages on a reasonable preponderance of credible evidence. Further, as the trial judge recognized in this case, a trial judge is obliged to do his or her best to assess the damages suffered by a plaintiff on the available evidence even where difficulties in the quantification of damages render a precise mathematical calculation of a plaintiff’s loss uncertain or impossible. Mathematical exactitude in the calculation of damages is neither necessary nor realistic in many cases. The controlling principles were clearly expressed by Finlayson J.A. of this court in Martin v. Goldfarb, 1998 CanLII 4150 (ON CA), [1998] O.J. No. 3403, 112 O.A.C. 138, at para. 75, leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 516:
I have concluded that it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated. The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.
See also Cadbury Schweppes Inc. v. FBI Foods Ltd., 1999 CanLII 705 (SCC), [1999] 1 S.C.R. 142, at para. 99; 100 Main Street East Ltd. v. W.B. Construction Ltd. (1978), 1978 CanLII 1630 (ON CA), 20 O.R. (2d) 401 (C.A.), 88 D.L.R. (3d) 1, at para. 80; Penvidic Contracting Co. v. International Nickel Co. of Canada, 1975 CanLII 6 (SCC), [1976] 1 S.C.R. 267, at pp. 278-79.
Conclusion
Trespass to property is very wide in scope; and because trespass is a strict tort, a person can be held liable even if the trespass was accidental. That said, without wrongful intent and without real harm, damages awarded are usually minimal. Still, even an innocent trespass can sometimes cause significant loss.